People v. Choyce: Harmless Use of Disapproved “Assume the Penalty Will Be Carried Out” LWOP Instruction; Reaffirmed Limits on Heat‑of‑Passion and Live‑Victim Rape Rules

Introduction

In People v. Choyce (Supreme Court of California, July 21, 2025), Justice Evans, writing for a unanimous court, affirmed three death judgments and associated noncapital sentences against William Jennings Choyce for the murders of Victoria Bell (Oakland, 1988), Gwyndolyn Lee (San Joaquin County, 1997), and Lawanda Beck (San Joaquin County, 1997), along with other violent sex offenses. The case offers notable clarifications on several recurring trial and penalty‑phase issues:

• Guilt‑phase instructions: When a defendant is not entitled to a voluntary manslaughter instruction on a heat‑of‑passion theory; the live‑victim requirement for rape and how standard rape instructions can implicitly convey it; and the adequacy of CALJIC No. 2.90 on presumption of innocence.
• Penalty‑phase practices: Prosecutorial cross‑examination boundaries of defense experts; the need to reinstruct on reasonable doubt after telling jurors to disregard guilt‑phase instructions; and how to answer juror questions about the meaning of life without the possibility of parole (LWOP) after People v. Letner & Tobin disapproved the older “assume the penalty will be carried out” approach.
• Constitutionality: Reaffirmation of the felony‑murder and multiple‑murder special circumstances and numerous well‑worn challenges to California’s death penalty scheme.
• Victim impact: The permissible breadth and scope of victim impact testimony, including testimony tied to charged and other violent criminal conduct.

Although the court identified two instructional errors—(1) failure to redefine reasonable doubt at the penalty phase after telling jurors to ignore guilt‑phase instructions, and (2) use of the now‑disapproved “assume the penalty will be carried out” response to an LWOP question—both were held harmless on the record presented. The court also corrected an unauthorized determinate term calculation on firearm enhancements, ordering the abstract of judgment amended to impose full four‑year terms on each relevant enhancement.

Summary of the Opinion

• Convictions and Special Circumstances: The court affirmed the guilt verdicts (three first‑degree murders, rape and sexual penetration, kidnapping, bindings, personal firearm use) and the true findings on rape‑murder and multiple‑murder special circumstances. DNA evidence tied Choyce to the sex offenses and murder victims; ballistic evidence linked two murder bullets to the same .38/.357 revolver class; physical evidence supported bindings and execution‑style shootings.
• No Voluntary Manslaughter Instructions: There was no substantial evidence of victim‑provocation or subjective heat of passion to warrant lesser‑included instructions. Any assumed error would be harmless due to the jury’s separate felony‑murder findings, which do not depend on malice.
• Rape Requires a Live Victim (but no special instruction required here): The court reaffirmed that rape requires a live victim. Standard rape instructions referencing the victim’s “will” and “fear” sufficed; no substantial evidence supported a post‑mortem intercourse theory; and the claim was forfeited for failure to request clarification.
• Presumption of Innocence Instruction (CALJIC 2.90): Adequate as given; clarifying amplifications were forfeited by the defense’s failure to request them.
• Special Circumstances Constitutional Challenges: Rejected consistent with long‑standing precedent. The felony‑murder and multiple‑murder special circumstances sufficiently narrow eligibility and comport with Eighth Amendment proportionality principles.
• Penalty‑Phase Prosecutorial Misconduct: Mostly forfeited for lack of requests for admonitions; on the merits, no due process violation or prejudicial “deceptive or reprehensible” methods. The prosecutor’s tone and mis‑titling of a defense expert were improper but not prejudicial on this record.
• Penalty‑Phase Reasonable Doubt: Error to omit a penalty‑phase reasonable doubt reinstruction after telling jurors to disregard guilt‑phase instructions; harmless here.
• Juror LWOP Question: The trial court’s reliance on the previously approved “assume the penalty will be carried out” instruction (from Snow) is error under Letner, but harmless on the record because the jury was otherwise accurately instructed that LWOP means no parole, and there was no suggestion of likely commutation.
• Delay (Lackey) Claim: Executing a defendant after extended time on death row is not cruel and unusual punishment under California or federal law.
• Victim Impact Evidence: Properly admitted. No categorical limits on number or type of witnesses; testimony tied to other violent acts may be presented under section 190.3. Any arguable overage (e.g., the victim’s daughter) was harmless in light of the record.
• Sentencing Correction: The abstract must be amended to reflect full four‑year terms on three firearm enhancements rather than one‑third terms.

Analysis

Precedents Cited and How They Shaped the Decision

• Lesser‑Included (Voluntary Manslaughter) Instructions:
  • People v. Breverman, Halvorsen, Tufunga, Mendoza, Wilson: Trial courts instruct on lesser‑included offenses when supported by substantial evidence; speculation is insufficient; doubts are resolved in favor of the accused, but evidence—not conjecture—must exist.
  • Steele, Wickersham, Lee, Moye: Heat of passion requires both subjective passion and objectively adequate provocation from the victim.
  • Miranda, Romero, Casares: Execution‑style killings and binding support premeditation; they undercut heat‑of‑passion theories.
  • Schuller: Failure to instruct on heat of passion implicates federal due process but is subject to harmless error review.
  • Balderas, Gonzalez, Demetrulias: Where felony‑murder applies, malice is not an element and heat of passion cannot reduce first‑degree felony murder to manslaughter; omission of lesser‑included instructions is harmless if the verdict necessarily found first‑degree felony murder.
• Live‑Victim Requirement for Rape:
  • Carpenter, Booker: Rape requires a live victim. Standard definitions (“against the will,” “fear”) imply life; no sua sponte duty to add a live‑victim instruction absent reliance on the defense and substantial evidence.
  • Sellers: If the defense theory with substantial evidentiary support is intercourse after death, a clarifying instruction becomes material.
• Presumption of Innocence (CALJIC 2.90):
  • Lucas, Thomas, Taylor: CALJIC No. 2.90 is adequate; clarifications must be requested; “burden” is adequately explained by the instruction itself as the requirement to prove guilt beyond a reasonable doubt.
• Special Circumstances and Narrowing:
  • Morrison, Myles, Sapp, Musselwhite: California’s statute sufficiently narrows death eligibility; felony‑murder and multiple‑murder special circumstances are constitutional.
  • Tison, refined in Banks and Clark: The Eighth Amendment does not demand an intent to kill for death eligibility; major participant and reckless indifference standards suffuse proportionality into felony‑murder liability.
  • Jennings: Death for non‑intentional killers is not per se unconstitutional.
• Penalty‑Phase Prosecutorial Misconduct:
  • Hill, Ghobrial, Alfaro: Forfeiture principles (objection plus request for admonition); sustained objections mitigate prejudice.
  • Young, Morales, Cole, Cash, Ramirez, Tate, Dykes, Sanchez: Fundamental unfairness/due process standard and state‑law “deceptive or reprehensible” test.
  • Salcido, Krebs, Shazier, Zambrano, Steskal: Wide berth to probe bias, compensation, prior testimony patterns; avoid unfounded insinuations or court‑order violations.
• Penalty‑Phase Reasonable Doubt:
  • Holt, Cowan, Chatman, Lewis: Error to omit reasonable doubt reinstruction after telling jurors to disregard guilt‑phase instructions.
  • Lopez, Boyce: Such omissions can be harmless if the record shows no reason to think jurors applied an incorrect standard.
• LWOP Meaning; Juror Questioning:
  • Snow (older rule): Tell jurors to assume the selected penalty will be carried out.
  • Letner & Tobin (later disapproval): The “assume it will be carried out” instruction is misleading; where commutation is mentioned, give a neutral, non‑speculative admonition (see Nguyen; Ramos; Werdegar, J., concurring in Samuels).
  • Crandell, Harris, Ghent: Evaluate possible juror confusion in the whole‑record context; isolated or neutral references to commutation are not prejudicial without more.
• Lackey Claim (Delay on Death Row):
  • Seumanu, Charles, Vines, Ward, Brown, Lenart, Richardson: Delay alone does not render execution cruel or unusual.
• Victim Impact Evidence:
  • Payne: Victim impact is admissible unless unduly prejudicial so as to render the trial fundamentally unfair.
  • Simon, Trinh, Montes, McKinnon: No fixed numerical cap or “one witness per victim” rule; trial courts police cumulativeness.
  • Blacksher, Brady: No categorical limit to those present at the scene or only impacts known to the defendant.
  • Justice Kennard’s concurrence/dissent in Fierro proposed a foreseeability limit—repeatedly declined (see Schultz, Simon, Jones, Myles).
  • Virgil, Bramit, Davis, Demetrulias, Scully, Miles, Martinez: Impact evidence tied to uncharged or charged violent conduct is permissible under § 190.3, factors (b) and (c).
• Global Death‑Penalty Scheme Challenges:
  • Suarez, Mitchell, Thornton, Henriquez, Gonzales, Blair, Elliot, Valdez, Carter, McDowell, Rangel, Manriquez, Thomas, Lindberg: A long line of cases rejects claims about narrowing, burdens of proof, unanimity on aggravators, written findings, “presumption of life,” intercase proportionality, equal protection, and international law.
• Sentencing Correction:
  • Felix: The one‑third subordinate term rule does not apply to enhancements attached to indeterminate terms.
  • Sanders: Unauthorized sentences may be corrected at any time.

Legal Reasoning

1) No voluntary manslaughter instructions were warranted. The court emphasized that neither objective provocation by the victims nor Choyce’s subjective heat of passion found support in the record. The pattern—bindings or restraints, rapes, and execution‑style shots to the back of the head—suggested planning and deliberation, not a “rash explosion” of passion. Without evidence, defense speculation about possible consensual sex or attempted robberies could not trigger lesser‑included instructions. And even had the instructions been given, any error would have been harmless because the jury’s true felony‑murder special‑circumstance findings establish first‑degree murder independent of malice, which heat of passion negates.

2) Live‑victim requirement for rape was satisfied by the standard instructions, and the claim was forfeited. California law is settled: rape requires the victim be alive. Here, the trial court gave CALJIC No. 10.00, which defines rape in terms that presuppose a living victim (will, fear, force). There was no substantial evidence that intercourse occurred post‑mortem; the defense did not argue that theory; and no clarifying instruction was requested. The court reaffirmed Carpenter and Booker, while acknowledging that where the defense relies on a post‑mortem theory supported by evidence, a clarifying instruction may be necessary (Sellers).

3) CALJIC 2.90 remained adequate; clarifications were forfeited. The court reiterated that CALJIC 2.90 sufficiently conveys the presumption of innocence, the State’s burden of proof, and that the presumption continues through trial. If a defendant wants elaborations, they must be requested at trial.

4) Special circumstances are constitutional. On repeated challenges to the felony‑murder and multiple‑murder special circumstances, the court adhered to its and the U.S. Supreme Court’s precedents. The special circumstances narrow eligibility sufficiently; intent to kill is not invariably required under Tison; and California’s Banks/Clark refinements ensure proportionality for non‑killer accomplices.

5) Prosecutorial cross‑examination did not render the penalty phase unfair. Although the prosecutor’s tone at points was argumentative and disrespectful (including repeatedly calling the defense psychologist “Ms.” rather than “Dr.”), many objections were sustained, the prosecutor acknowledged his misplaced tone in front of the jury, and much of the content (bias, compensation, prior case work) was proper impeachment. The claims were also largely forfeited for lack of requests for admonitions. The court found no due process violation and no reasonable likelihood of a different penalty verdict.

6) Penalty‑phase reasonable doubt—error but harmless. After instructing jurors to disregard guilt‑phase instructions, the court should have redefined reasonable doubt at the penalty phase. Consistent with Holt, Cowan, Chatman, and Lewis, the omission was error but harmless because there was no record indication jurors applied any incorrect standard, and the earlier correct definition remained the only one before them.

7) Responding to the juror’s LWOP question using the disapproved Snow formulation—error but harmless. The trial court told jurors to assume that whichever penalty they chose (including LWOP) “will be carried out.” That instruction, formerly sanctioned by Snow, has been disapproved as misleading by Letner & Tobin. Even so, the error was harmless here. Jurors had been plainly told that LWOP means “without possibility of parole”; there was no suggestion that commutation or parole was likely; and even the prosecution’s prison expert did not identify any California instance of LWOP commutation leading to parole. The court also noted an asymmetry in the “real possibility” of non‑execution versus commutation of LWOP: the former is widely known to the public given death penalty delays; the latter is extraordinarily remote, particularly in a serial rape‑murder case. In context, the disapproved instruction did not prejudice Choyce.

8) Delay on death row (Lackey) claim rejected. The court reiterated that lengthy post‑sentence delay pending appellate and collateral review is not cruel or unusual punishment; if the judgment is reversed, no prejudice; if affirmed, the delay has prolonged life.

9) Victim impact evidence was within permissible bounds. The trial court reasonably allowed multiple family members to describe the victims and the impact of the murders, and allowed impact testimony tied to other violent conduct admitted under section 190.3 factors. The Supreme Court again declined to adopt categorical limits (e.g., one witness per victim, only scene‑present witnesses, only impacts foreseeable to the defendant). To the extent a non‑victim (the rape victim’s daughter) testified about downstream impacts, any error was harmless in light of extensive, powerful, properly admitted impact evidence.

10) Sentencing correction for firearm enhancements. The court ordered the abstract of judgment amended to impose the full four‑year term for each firearm enhancement attached to indeterminate life terms, rather than one‑third terms, consistent with Felix and the inapplicability of the Determinate Sentencing Act’s subordinate‑term limitation.

Impact

• LWOP jury questions post‑Letner: This decision confirms that using the disapproved “assume the penalty will be carried out” instruction is error, but also models a record‑sensitive harmlessness analysis. Trial courts should avoid the Snow instruction and instead give Letner‑compliant guidance (do not speculate about commutation; focus on evidence and the instructions). Where the older instruction appears in legacy trials, appellate courts will examine the whole record for actual confusion or prejudice.
• Lesser‑included manslaughter instructions: The court reaffirms a rigorous evidentiary threshold for heat‑of‑passion theories, especially where the homicide method bespeaks planning and control. Defense speculation about commercial sex or robberies will not suffice. And felony‑murder findings can render omissions harmless.
• Live‑victim rape rule in homicide prosecutions: Standard rape instructions usually suffice to convey the live‑victim element; defendants must request clarifying language and identify substantial evidence supporting a post‑mortem theory (Sellers) to warrant more.
• Penalty‑phase decorum and cross‑examination: The court flags unprofessional mis‑titling of experts and argumentative tone as improper, while explaining why such conduct did not, on this record, warrant reversal. Prosecutors receive a reminder to probe bias and compensation without derision or unfair insinuation.
• Victim impact breadth: The court again rejects categorical limits and leaves calibration of cumulativeness and emotional tenor to trial courts’ discretion, signaling continued latitude to present a rich narrative of loss, subject to Evidence Code controls and due process boundaries.
• Administrative cleanup of enhancements: Appellate courts will correct unauthorized determinate‑term calculations attached to indeterminate terms on their own motion; practitioners should audit abstracts for such errors.

Complex Concepts Simplified

• Lesser‑Included Offense Instruction: If there’s substantial evidence that a defendant committed a less serious crime that is fully contained within the charged crime, the court must instruct the jury on that lesser crime—even if neither party asks—so jurors can choose the lesser if warranted.
• Heat of Passion (Voluntary Manslaughter): A defendant who intentionally kills can be guilty of manslaughter (not murder) if he actually acted in a sudden, intense passion that an ordinary reasonable person would also experience because of the victim’s provocation. The provocation must come from the victim.
• Felony Murder: A murder committed during certain serious felonies (such as rape or robbery) is first‑degree murder even if the killer did not act with malice. Special circumstances attached to felony murder can make a defendant eligible for the death penalty.
• Special Circumstances: Statutory factors that, when found true (e.g., multiple murders, murder during rape), make a murderer death‑eligible in California.
• CALJIC vs. CALCRIM: Two standardized sets of jury instructions used in California. CALJIC is the older set; CALCRIM is the newer. Courts may use either, provided the law is correctly stated.
• Reasonable Doubt Reinstruction at Penalty Phase: If a court tells jurors to disregard guilt‑phase instructions, it should redefine “reasonable doubt” for the penalty phase so jurors know how to evaluate aggravating factor proof (such as other crimes under § 190.3(b)). Failure to do so can be harmless if no confusion appears.
• Simmons / LWOP Clarification: The jury must be accurately informed that a defendant is ineligible for parole if the law makes him so; jurors should not be left to speculate that parole might occur. California’s “LWOP” plainly means no parole.
• Letner Rule on LWOP Questions: Do not tell jurors to assume the penalty will be carried out. If jurors ask about commutation/pardon, briefly explain that clemency powers apply to both penalties and must not influence the jury’s decision.
• Prosecutorial Misconduct Standards: Federal due process is violated if the conduct makes the trial fundamentally unfair. Under state law, reversal is required if the prosecutor uses deceptive or reprehensible methods likely to affect the outcome. Objections and requests for admonitions are generally required to preserve claims.
• Lackey Claim: The argument that executing a defendant after a long delay violates the Eighth Amendment. California consistently rejects this claim.
• Victim Impact Evidence: Testimony or exhibits about a victim’s uniqueness and the harm to loved ones. Admissible unless so emotional or cumulative that it overwhelms jurors’ ability to fairly decide punishment.

Conclusion

People v. Choyce is predominantly an affirmance that consolidates and modestly clarifies existing law. Its most noteworthy contribution is a pragmatic, record‑specific harmlessness analysis where a trial court, relying on pre‑Letner law, instructed jurors to “assume” their chosen penalty would be carried out in response to an LWOP question. The court held that although this was error under Letner, it was harmless where LWOP was otherwise correctly defined, no argument or evidence suggested a real prospect of commutation to parole, and the overall instructions foreclosed speculation.

Beyond that, the court reinforces several steady guideposts: lesser‑included heat‑of‑passion instructions require actual evidence of victim‑provocation; rape requires a live victim, which the standard instructions sufficiently convey absent a supported post‑mortem theory; CALJIC 2.90 remains adequate; felony‑murder and multiple‑murder special circumstances are constitutional; and victim impact evidence remains broad, policed chiefly by trial‑court discretion. On penalty‑phase conduct, the opinion cautions prosecutors against disrespectful tones and mis‑titling experts but finds no reversible misconduct here. Finally, it corrects a mechanical sentencing error regarding firearm enhancements, reminding practitioners to align determinate enhancement terms correctly with indeterminate sentences.

In the broader legal landscape, Choyce serves as a careful application of precedent with practical guidance for trial courts on penalty‑phase jury management post‑Letner, and as a reaffirmation of settled doctrines that continue to structure homicide and capital litigation in California.